United States v. George R. Blick

SHEDD, Before MICHAEL and Circuit HAMILTON, Judges, and Senior Circuit Judge. September opinion. Judge April and by published Between

Dismissed withdrawals and majority opinion, in made unauthorized SHEDD wrote totaling approximately payments Judge joined. which HAMILTON Senior $1,440,000 account to fund a from the BOA Judge dissenting wrote MICHAEL that was personal transaction unrelated opinion. specifically Ell’s re- business. Count SHEDD, Judge. Circuit July lates to wire transfer of a caused) (or $180,000 Blick made from the appeals Blick 30-month George R. his in Morgan, BOA to Pratt Ltd. account grounds: fraud on sentence for wire two Madrid, partners Blick’s Eli were Spain. (1) erroneously calculated the district unaware of his unauthorized withdrawals § in 2B1.1 loss amount U.S.S.G. payments, they and Blick believed that and determining guideline his if they have consented had (2) range, he should be and resentenced — United, known about them. Booker, accord States 738, U.S.-, L.Ed.2d 621 2003, 11, days On three a July before (2005). moved to The United States has begin working at new accountant was on dismiss the based Eli, $785,000 Eli deposited Blick into ac- plea agreement. written waiver in Blick’s replace prior counts to his unauthorized find that the waiver is Because we payments. and Blick did not withdrawals valid Blick raised and that the issues has payments record or on any withdrawals waiver, are within the of Ell’s In August books until late grant appeal. motion and dismiss this August Blick—without the knowl-

edge or partners request- consent of his change mailing ed BOA address I. receiving for Eli commercial mail to a Blick on January was indicted all business. Blick committed of these trial, seven of wire fraud. counts Before executing purpose acts for a scheme Blick the United States entered into a and to defraud Eli. plea agreement, agreed which he plead to Count 5 of indictment. guilty B. plea agreement The also contains sever-

A. provisions al Blick sentencing. related and the agreement acknowledged contains a state- agrees penal- ment facts that Blick establishes that the “maximum guilt beyond charged his a ties” for wire fraud offense on Count reasonable years facts that Count 5 “a maximum term of 20 generally doubt. These show are $250,000, imprisonment, and October Blick of a fine full between March assessment, restitution, special was a and one-third shareholder and three principal (“Eli”), years release.” Blick ac- Enterprise Integration, supervised Inc. Fairfax, systems understanding information con- his Virginia, knowledged “jurisdiction Eli an ac- district court had and authori- sulting business. maintained (“the ty impose any within count the Bank of America BOA the statu- account”). tory responsible Blick for Ell’s maximum described above but that affairs, and routine the Court determine actual accounting [would] [his] business with the signatory ac- sentence in accordance Sentenc- he was the BOA Policy count. Statements.” Guidelines that “the actual enter into the was volun- parties agreed also tary. from the scheme to com or intended loss purposes fraud U.S.S.G. [for

mit wire $655,000,” C. greater § no than 2B1.1] to contend “reserves At guilty plea hearing, response against a credit the loss he is entitled to court, questioning from the district 2(E).”1 Note Application pursuant Blick stated under oath that he understood Moreover, entry to the of a agreed they and how would be affected full amount of order “for the restitution guilty plea. Blick also stated that losses,” acknowledged and he the victims’ the factual plea agree- statement was then aware that the United States ment was accurate and that he was enter- a that Eli was a victim which had suffered plea voluntarily. the $655,000. parties The furthe loss of specifically district also in- r circum agreed appropriate that under had, quired whether Blick the reviewed Blick be entitled to a three- stances plea agreement and whether he under- sentencing reduction under U.S.S.G. level stood that in he was waiv- the acceptance responsibility. § of 3E1.1 for ing “any right may have to [he] the plea agreement may imposed.” In a section of the titled sentence that Blick be Review,” ac- Appeal questions of and Blick answered both in the “Waiver affirmative. knowledged understanding right Additionally, of his the district court Blick asked by § to the sen- “that pleading under 18 3742 whether he understood U.S.C. However, imposed. agreed guilty, may Blick impose tence the Court the same “knowingly punishment that he waives the as if had been tried [he] and any by jury.” sentence within the maxi- a court or a Blick convicted answered, “Yes, sir, in I provided mum the statute of conviction do.” likewise (or response questions manner in that sentence was from the which indicated the determined) grounds, on the set forth district court that he understood that he whatsoever, years” any ground imprisoned “up or on could be to 20 [§ 3742] exchange “any imposed for the concessions made the that sentence that plea agreement.” Sentencing will the [the] be affected Guide- The United States’ concessions included lines.” remaining dismissal the six counts hearing, At conclusion of the grant immunity

the indictment and the “voluntarily district court found that Blick in the prosecution from criminal plea and that intelligently” entered Virginia Eastern District of for the re- plea. a Ac- supported factual basis maining conduct described in the indict- cordingly, accepted district court facts. stipulated ment and the guilty and found Blick on Count 5 of indictment. signed Blick and his counsel By signatures, Blick and agreement. their II. represented his counsel that Blick had pled one month after Blick fully concerning been advised the terms of Less than sentenced, guilty, he and that his decision to but before $785,000 2B1.1, July deposit § of loss is re- 1. Blick’s U.S.S.G. the amount by any money the defendant returned into Ell’s accounts left a shortfall of duced $655,000. 2(E) Application the victim before the offense was detected. Under Note decided, Shortly Blakely was Supreme decided v. after we Blakely Court Wash- ington, 159 convened banc in United States v. 542 U.S. en (2004). Hammoud, In Blakely, Blakely’s the Court impact. L.Ed.2d to consider constitutionality of the Following hearing, considered we entered an or- Washington’s determinate sen- affirming judgment holding State of der Blakely pled guilty tencing Blakely operate scheme. had to invalidate did felony punishable by kidnaping, Hammoud’s sentence Guide- years impris- Hammoud, than 10 term of not more lines. United States (4th Cir.2004). Washington provisions onment. Other also F.3d We instruct- law, sentencing to the federal comparable ed the courts this circuit to district (“Guidelines”), guidelines mandated sen- sentencing continue criminal defendants Blakely Guidelines, tencing range for of 49 to 53 with the accordance but months, announce, sentencing judge unless the found they at the recommended justifying aggravating exceptional pursuant facts sentencing, time of a sentence 3553(a), judge treating § sentence. found 18 U.S.C. Guide- Blakely had acted with “deliberate advisory only. lines as him cruelty” and therefore sentenced to 90 Id. imprisonment. of at 2534.

months III. Court, applying The the rule announced Hammoud, After a proba- we decided Jersey, in Apprendi v. New 530 U.S. tion presentence report officer filed a (2000) 2348, 147 490, 120 S.Ct. L.Ed.2d 435 (“PSR”) recommending that Blick’s sen- “[ojther (holding that than fact of a tencing was 30-37 months of range impris- conviction, prior any fact increases probation onment. officer recom- beyond the penalty pre for a crime range mended this based on her conclusion statutory maximum be sub scribed must history criminal category Blick’s jury, proved beyond to a and a mitted I, and total offense level was his doubt”), imposi reasonable held that the level, calculating pro- the total offense sentencing tion of the enhancement— a began bation officer base offense solely on sentencing which was based 2Bl.l(a), § of level see U.S.S.G. and findings Blakely’s judge’s factual —violated added 14 the total levels because intended Sixth Amendment because the facts $655,000, loss of conduct was Blick’s see findings ad supporting were neither 2Bl.l(b)(l)(H). probation § U.S.S.G. by Blakely jury. nor mitted found officer another two levels for added Blick’s at 2536-38. The thus set Court trust, of position abuse of see U.S.S.G. Blakely’s Id. Al aside sentence. 3B1.3, § three and subtracted levels for though expressed opinion no Court responsibility, acceptance see may the effect its decision on the have 3El.l(b). § U.S.S.G. Guidelines, see id. at 2538 n. several dissenting expressed sentencing hearing, Before Justices concern Blick necessarily implied invalidity objec- filed a Blakely memorandum and important aspects Generally, tions to Blick argued the Guidelines. the PSR. See, (O’Connor, J., e.g., purposes id. at 2550 dissent that the amount for loss ing); (Breyer, J., dissenting).2 id. at 2561 sentence be zero rather than should J., (O'Connor, expressed dissenting). 2. These Justices had similar con- 120 S.Ct. 2348 See, Apprendi. e.g., cerns in 530 U.S. at subject $655,000 on a “net' loss” calculation. to review for based Id. reasonableness. “The at 764-65. appellate in his brief: The Court further held that its explains As he applies Blick’s contention that he decision to all cases on bottomline is direct re- view, money subject and the net loss to application took his own to the of “ordi- that, argued Blick also nary prudential Eli is zero.” doctrines.” Id. at 769. In Booker, not be Blakely light parties the district we directed the at all permitted addressing any, to enhance file briefs if impact, position for a loss amount or for abuse of that decision have on appeal. Despite making argu- of trust. this latter IV.

ment, acknowledged holding Blick our Hammoud. appeals his sentence on two First, grounds. he contends that the dis-

During sentencing hearing, Blick re- trict court erred in calculating loss Blakely argu- iterated his “net loss” § amount under U.S.S.G. 2B1.1 because it rejected ments. The district court these accept theory. did not his “net loss” Sec- and, consistent with the recom- arguments ond, he contends the district court’s PSR, mendation sentenced sentencing enhancements the loss imprisonment of months of a term 30 position amount and of a abuse trust $655,000 him pay ordered restitution run afoul of Booker and that he must an- to Eli.3 The district court did not therefore be resentenced. The threshold Ham- nounce alternate sentence under issue we must consider is whether remaining of the in- moud. The counts Blick’s dismissed, judgment dictment were him precludes presenting from these is- was entered. reasons, on appeal. following sues For the Despite appeal not to his his we conclude that it does. sentence, appeal. In re- filed this moved to dis- sponse, the United States A. appeal miss based on Blick’s waiver. A criminal a right appeal defendant’s to pending, that motion was the Su- While § sentence arises under 18 U.S.C. preme Blakely Court held Booker that In Wiggins, United States v. 905 F.2d and, therefore, applies to the Guidelines (4th Cir.1990), held that a we defendant Amendment is violated when a the Sixth right appropriate can waive this cir- mandatory a imposes district court sen- cumstances. greater tence under the that is Guidelines by Wiggins despite signing plea agree- a than maximum authorized facts jury right alone. 125 at 755. ment that included a waiver of his found held, however, district appeal appealed The Court also that two sentence — a reduc- provisions creating grant sentencing of the statute court’s refusal to responsibility. Be- system acceptance Guidelines must be excised to tion for appeal Amend- we found that the waiver was compatible make it the Sixth cause made, ment; voluntarily intelligently makes the we dis- aspect this Booker addressing the advisory application Guidelines and their missed the without somebody question company ve- ... can embezzle at 3. The district court did not long liquidated they racity proffered will as as the value that of the evidence Instead, company greater than what "net the district have in the is loss” issue. took, rejected theory, explain- they a zero embezzlement. I the "net loss” there is ing: long you liquidate any question that.” "[A]s as could omitted).5 Recently, in Id. at 54. tion United Wiggins’ argument. merits Lemaster, Cir.2005), that defendants can “[i]f reasoned We fundamental constitutional waive general concerning our rule we extended counsel, or the such as the held that a defendant appeal waivers and trial, surely they precluded jury a are not plea agreement in a waive waiving procedural rights granted from § 2255 to attack his con- under 28 U.S.C. (internal quotation statute.” Id. at 53 collaterally. viction and sentence omitted). also marks and citation We ob- “pre- waivers served that because a defendant has effec Whether finality judgments and sen- serve[ ] is an issue tively waived imposed pursuant pleas to valid tences Marin, novo. of law that we review de guilty,” they given proper “should be their Where, here, 961 F.2d at 496. as effect,” a who waives his defendant of an ap States seeks enforcement United purpose for the of obtain- waiver, Brock, 211 n. 1 see F.3d at 90 peal government “may from the ing concessions (declining to consider an part bargain.” ignore “arguably” barred the on one Id. at 54. “expressly issue because the United States Wiggins, consistently we ad- Since have argue regard not to waiver with elected principle ap- hered to the issue”), and there is no claim that the enforceable, peal generally waivers are obligations breached its un such in a and we have enforced waivers Bowe, plea agreement, see der the so, doing have number of cases.4 we (holding United holding noted that defendant of the re States’ breach bargain “inequitable” he struck is not be- the defendant from the waiv leases “[ujnlike a defendant who is sen- cause er), preclude enforce the waiver to will trial, a defendant who enters tenced after appealing specific a defendant from issue bargain has some control over the if the record establishes that the waiver is sentence,” terms of his and if he “wants to being appealed valid and the issue ensure that he is sentenced strict accor- waiver, within guidelines, dance with the he can refuse to (4th Attar, 727, States v. 38 F.3d 731-33 appeal as a condition waive his (cita- Cir.1994). Brown, at 406 plea.” 232 F.3d See, General, e.g., appeal 5. To whatever extent be 4. United States v. 278 F.3d waivers can 389, (4th Cir.2002); "inequitable,” play we evened considered 399-401 United States v. ing field somewhat in United States v. Gue Brown, 399, (4th Cir.2000); 232 F.3d 402-06 vara, 1299, Cir.1991), (4th 941 F.2d 1299 Brock, 88, United States v. 211 F.3d 92 n. 6 where we held that when a defendant waives (4th Cir.2000); Lambey, v. United States 974 * appeal plea agreement, in a "such 1389, (4th Cir.1992) (en banc); F.2d 1393 n. against appeals provision must be en also Marin, United States v. 961 F.2d 495-96 against government.” forced In United Cir.1992); Davis, (4th see also United States v. Bowe, (4th v. Cir. F.3d (4th Cir.1992) (enforc- 954 F.2d 185-86 2001), party’s we held that "a waiver of the ing precluded a waiver that the defendant appellate to seek review is not enforce convictions); appealing certain from cf. party opposing able where breaches Williams, 174- plea agreement,” and a defendant's material (4th Cir.1994) (holding that a defendant plea agreement breach of the releases the stipulated drug prior who amounts to sen- reciprocal implied United States "from its tencing appeal waived his on appeal promise under Guevara not to the mer amounts). drug issue of the judgment its of a of conviction or sentence.” reasons, appeal For we find that the these

B. valid. waiver is waiver validity appeal of an The know the defendant on whether depends C. to waive the agreed intelligently and ingly now whether the We must consider Although at 731-32. appeal. Id. right to appeal Blick has on fall issues raised two on often made based is this determination scope appeal within the of the waiver. colloquy specifi plea of the adequacy appeal bars Blick from appeal waiver questioned the district cally, whether e “any sentenc within the* maximum waiver— appeal the defendant about (or in the statute of conviction provided by refer ultimately is “evaluated the issue that sentence was the manner which the.totality of the circumstances.” ence determined)” “any ground on whatsoever.” Thus, General, the deter 278 F.3d Therefore, of the case, upon depend, “must each mination (1) any on is twofold: cannot sur facts and circumstances particular maximum any sentence within the ground case, including the back rounding that conviction, in the statute of and provided conduct of the experience, and ground, (2) any ground he cannot (internal Davis, F.2d at 186 accused.” any in which sentence within the manner omitted).6 marks and citation quotation maximum in the statute of con provided Clearly, the lan viction was determined. Here, fully establishes the record broad, exceedingly guage of this waiver intelligently and knowingly alone) it bars Blick from (standing language appeal. waived his unless it is hot appealing his sentence indeed, meaning of the waiver— provided maximum in the stat “within the clear agreement as whole—is States v. ute of conviction.” See United unmistakable, Blick and his and both Cir.2005) Rubbo, 1330, 1333 signatures their attorneys represented (“The language general waiver —‘all that Blick had been to the any sen [§ 3742] conferred understood, about, and its fully advised the manner imposed ... or to tence Moreover, colloquy during terms. imposed’ in which the sentence —cer questioned specifically the district court any issues tainly enough to cover is broad college education —about has a Blick—who proge from and its arising Apprendi waiver, understanding Booker.”). ny, including to and up that he understood and Blick stated .that convicted under 18 U.S.C. Blick was any right may have “waiving [he] he was correctly acknowledged § im As Blick appeal the sentence guilty and at his plea agreement in the Additionally, the district court posed.” under hearing, the maximum sentence found, colloquy, plea conducting plea after years imprisonment. § 20 “volun 1343 is entering that Blick was obviously sentence is in the Blick’s 30-month intelligently.” Nothing tarily and in the stat- provided the maximum that the district “within suggests us record before ute of conviction.”7 regard is erroneous. finding court’s review. Gener- subject plain although error ment is 6. We have noted that Fed.R.Crim.P. al, 278 F.3d at 400 n. 5. requires inquire district courts 11 now during collo- appeal waivers about which have agree with the other circuits 7. We require- comply quy, the failure to with the use of the Court's considered the issue 170

Consequently, appeal we find that the issues waiver—because that case had not been decided when he entered into the appeal unquestionably Blick has raised on so, plea agreement. doing join In scope appeal fall within the of the waiver. the other that have circuits considered this “net making argument, loss” is type argument since Booker. See Unit appealing a sentence that is within the Lockett, 207, 214, ed States v. 406 F.3d 1343, §in provided maximum and in mak- (3d 1038937, 5, 2005 at May WL *5 Cir. argument appealing his Booker he is 2005) (“The record reflects that Lockett the manner in which that sentence was knowingly voluntarily bargained for attempting determined. Blick is therefore plea agreement. He cannot now ask to exactly to do what the- waiver for- re-bargain of his waiver bids. law.”); changes because of United reject (6th We Blick’s contention that his res- 459, Bradley, States v. 400 F.3d 463 Cir.2005) (“A ervation of the “to contend he is valid requires knowledge of not against existing rights, entitled to a credit the loss”—a clairvoyance.”); United States v. Grinard- fully at sentencing he exercised (11th 1294, Cir.), Henry, 399 F.3d him hearing the “net —allows — denied, U.S.-, 2279, cert. 125 S.Ct. Moreover, loss” issue. the fact that Blick (U.S. L.Ed.2d-, 73 U.S.L.W. 3672 argument claims in his loss” “net 2005) (No. 04-9566) 16, (“An May guideline district court erred its calcula- waiver includes the waiver of the tion of no moment here. As we ex- legal difficult or debatable is- Brown, plained an ..”); sues.-. Killgo, United States v. type “precludes involved in this case (8th Cir.2005) (“The 628, n. 2 F.3d fact claim given sentence resulted that Killgo anticipate Blakely did not from a misapplication of the Guidelines.” or rulings place Booker the issue does F.3d waiver.”);8 scope outside the of his cf. reject We hlso Blick’s contention that he Sahlin, 27, United States v. 399 F.3d 30-31 knowingly could not have waived his (1st Cir.2005) (rejecting & n. 3 as “frivo- argu- under Booker—or that his lous,” Booker in the of an attempt context to with- necessarily ment is outside guilty plea, argu- draw the defendant’s intent.”); West, "statutory Blakely the term maximum” in United States v. 392 F.3d (D.C.Cir.2004) meaning ("Having Booker does not alter the of the consented language plain sentencing in the See such terms to waiver. Green, 1180, 1192, Guidelines, West 405 F.3d would have us believe that (10th 6, 2005) May WL at *10 Cir. he nevertheless reserved a constitutional chal- (“In lenge through holding meaning exceeding- to the that the term of art Guidelines 'statutory ly employment ‘statutory subtle applies maximum' maximum.’ cases, guidelines Supreme reading We find Court has not such a untenable.”); every phrase mandated see also United States v. McKin- time the 'statuto- invoked, ney, 406 ry Blakely/Booker 2005 WL maximum’ is 2005) Rubbo, April (following *3 n. 5 Cir. apply.”); definition should West). ("The Rubbo and point at 1334 here is that the definition ‘statutory Supreme maximum’ the Court explain Green, 1189-92, holdings 1180, used to and describe its in 8. See also 405 F.3d says nothing 1060608, **7-10; those cases about what Rubbo 2005 WL at United v. Cardenas, government they and the meant when used 405 F.3d 2005 WL 1027036, (9th 4, permitted 2005); May the term 'the statute’ at *2 Cir. maximum 135, 136-38, appeal Morgan, in the waiver. This is not a matter of States v. 406 F.3d (2d 2005); legal question parties' Apr.27, research. It is a of the WL at **1-2 Cir. knowing attorneys, attorneys and and was not their the ment that moved and to to withdraw continue the sentenc- anticipate he did not voluntary because ing. The district the court denied motions Booker)-, v. generally see United States appear and ordered the to defendants for 2450, 153 Ruiz, 622, 629, 122 S.Ct. 536 U.S. sentencing .hearing. their At the sentenc- (“And (2002) law ordinari L.Ed.2d 586 the hearing, however, the district court intelligent, a ly knowing, waiver considers withdraw, permitted attorneys the to but it ful sufficiently if and aware the defendant discuss with defendants did not the the ly right understands nature of proceeding of perils pro se or ensure that in likely apply general how it would in they proceed wanted to in that manner. though the defendant circumstances —even specific appeal, argued conse On not know detailed the defendants it”) their set in sentences should aside invoking orig be quences (emphasis following inal). proceedings because their guilty pleas including D. hearing' in violation conducted —“were to right their Sixth Amendment counsel.” Notwithstanding foregoing, moved Id. at 731. to argument that his Booker is contends appeal dismiss the “because the defen scope not of his waiver within waived all dants relevant principle a we announced based on first plea agreement.” Although Id. we i.e., “a defendant waives his Marin: who “general found that the waiver subject does not himself to enforceable,” valid and noted ly we entirely being at the whim of sentenced dispute” its “the real was not about validi Ap court.” 961 F.2d at 496.9 district ty, about its scope. but Id. Refer we refused to plying principle, this have Marin, ring to we that we did stated not for a “narrow enforce valid waivers agreed think that a who defendant a claims,” Lemaster, class F.3d at 220 general appeal fairly “can be waiver said 2,n. our determination that those based on to have waived scope not within the of the claims were ground proceed on the that the sentence waiver.10 entry ings following guilty plea of the were example, the in Attar For defendants conducted violation of his Sixth Amend “whatever waived their counsel, a ment defendant’s 729. imposed.” is F.3d at sentence appellate to waive review his a conflict pled guilty, After the defendants implicitly conditioned assumption proceedings following between the that the developed defendants Bownes, validity scope and the waiver. We United States (7th Cir.2005). 405 F.3d 636-38 of the note analyze appeal other that some circuits waiv- See, analysis. three-part e.g., ers under example, 9. We continued: "For a defendant Hahn, United States v. be said to have waived his could not Andis, Cir.2004); United States v. appellate imposed review of a sentence (8th Cir.2003). These 891-92 cir- penalty provided excess of the maximum scope validity consider the of the cuits constitutionally imper- on a statute or based waiver, and also whether enforcement of the factor such as race." 961 F.2d missible miscarriage justice. Nonetheless, will result in a appears language Although we have used the term miscar- we the sentence dicta because held that waivers, being appealed justice analyzing appeal case "is not such riage of sentence.” Id. concept within seems subsumed our to be analysis waiver. noted, analyze appeal 10. As waivers under two-part analysis which we consider entry by will conducted in concluded that the issue raised be We with constitutional limitations.” Broughton-Jones scope accordance fell outside the Id. We continued: waiver. Id. at 1146-47. We case, authorizing noted that the statute restitu-

In this defendants do not seek to challenge ground only their on the tion limited such relief for losses sentences they improper applica- rest on an traceable to a defendant’s offense of con- guidelines viction, tion of the or violation of Brough- for which and the crime rule, procedural did some as the defen- perjury—did ton-Jones was convicted— Instead, they dant in Marin. seek to any harm pecuniary not cause to the resti- challenge ground their sentences on the Again, looking tution Id. at 1147. victim. proceedings following entry of that the Marin, challenge to we held that her to guilty plea including both the sen- scope the restitution order was outside the tencing hearing presenta- itself and the it of her waiver because involved a tion of the motion to their withdraw “illegal.” claim that the sentence was Id. pleas conducted violation of —were Notwithstanding some rather broad lan- right their Sixth Amendment to counsel. guage opinions, not those we do believe not think general We do waiver of holdings the actual of those cases contained in this compel argu- the conclusion that Blick’s fairly can construed as ments must be considered to be outside waiver of the to challenge their waiver, of his and we ground. Accordingly, sentences on that to holdings decline extend those appeal, we decline to dismiss this cases, case.12 both those the errors proceed instead to merits. its allegedly committed the district courts (citations omitted).11 Id. at 732-33 were errors the defendants could not Similarly, Brough United States v. reasonably contemplated have when the ton-Jones, (4th Cir.1995), 71 F.3d 1143 we Thus, plea agreements were executed. it held that a valid waiver in which (or fair) say reasonable Broughton-Jones ap waived her agreeing to waive their rights, the peal grounds her sentence on the set forth agreeing Attar defendants were to be sen- §in preclude 3742 did not her from assert counsel, Broughton- tenced without or (to that a restitution order agreeing Jones was to be to an sentenced informally agreed) which she had was not unauthorized restitution order. That sim- applicable authorized statute. ply part bargain they was not struck Broughton-Jones charged had been with the United States. perjury, pled guilty wire fraud and and she only entirely Blick’s perjury. to one count of The district situation is different. her, cases, among other things, sentenced Unlike defendants those pay only agreed restitution to the wire fraud victim. not ap- waive his merits, refusing grant 11. On the we affirmed the defendants' its discretion in the defen Attar, Although certainly sentences. a defendant a continuance. dants 38 F.3d at 733- can waive the to counsel at a proceeding, generally California, see Faretta v. 422 U.S. 95 S.Ct. 45 L.Ed.2d any 12. We fail to see under circumstance how (1975) (holding that a defendant argument simply has Blick's "net loss” —which trial), proceed pro goes propriety se did not to the of the Guidelines calcu- Instead, Marin, Attar, principle. base Brough- our decision on that lation'—is affected or we held that the district court did not abuse ton-Jones.

173 agreed appeal any to waive his on the maximum within “any sentence peal (or in ground his sentence and the manner conviction in statute of provided exchange which he was sentenced was in which that sentence manner by the determined)” several concessions made “any ground,” but he also on States, and he man- was sentenced in ac- that he would be sentenced agreed agreed. ner he The United Thus, which the Guidelines.13 cordance with part has adhered to its States plea agreement, ,time he entered bargain. Allowing appeal Blick to on the expressly and the United States both Blick raised, he has under these circum- issues agreed that he would contemplated and stances, deny unfairly would the United exactly the manner in which sentenced bar- important benefit of its was, fact, pre-Booker sentenced: he gain.15 Although the law system. Guidelines expec- pled guilty,

changed after Blick reasons, hold foregoing For all of the we (as plea agreement) in the tations reflected appeal that Blick’s valid and at 466 Bradley, 400 F.3d did not. See he has raised on are the issues to be sentenced un- (“Bradley’s willingness According- within the of the waiver. to waive generally der the Guidelines motion and ly, grant the United States’ him no less now binds appeal. dismiss this agree- signed when he than it did DISMISSED. ment.”). Thus, being far from sentenced court,” the district Blick “at the whim MICHAEL, Judge, dissenting. Circuit in the manner precisely sentenced was gov with the Under Blick desired to anticipated. Had that he ernment, George pled guilty to one Apprendi-tjpe to raise an retain the fraud waived his count of wire claim) (or appeal, any sentencing claim findings court made appeal. The district agree to the opted could have not he then-mandatory under the sentenc fact waiver.14 and sentenced Blick to thir ing guidelines Because Blick could ty prison. months V. based sole received this sentence have in the ly on the facts he admitted bargains rest on contractual “Plea imposed .agreement, receive party and each should principles, rights. Amendment violation of his Sixth bargain.” of its the' benefit Booker, (4th U.S. States v. F.2d 506 Cir. See United Ringling, 1993). -, LEd.2d 621 knowingly intelligently Moreover, allowing Blick to guilty plea 15.We note also Blick stated at his 13. by pleading upset hearing understood "that that he under these circumstances i.e., may impose pun- guilty, the same the Court balance we mandated in Guevara— had been tried and convict- [he] ishment as if implicit to be bound United States’ by by jury." ed a court or As the Sixth Circuit Blick’s waiver. recognized: waivers of the "Simultaneous Jones, F.3d States v. In United plea agree- parties to a two Cir.2002), we held that n. 1 here, ment, if future would amount to little as Apprendi waived his claim defendant rais- changes permitted the benefitted in the law than in his ing it in a Rule letter rather 28® party appeal.” Bradley, 400 nonetheless case, If, a defendant’s as in that initial brief. operate a waiver of an can as inadvertence issue, certainly a Apprendi-type defendant’s do so. negotiated waiver can (2005). majority by that Blick’s made the in The holds concessions plea agreement.” him from chal- J.A. 34-35. precludes I lenging his unconstitutional sentence. 6, 2004, Blick pled guilty On June after respectfully a defendant in dissent because sentenced, Supreme was but before he the prospectively this circuit cannot waive the Blakely Washington, decided v. 542 Court to constitutional violations at U.S. L.Ed.2d 403 Attar, sentencing. See United States 38 (2004), which cast doubt on the constitu- (4th Cir.1994). tionality sentencing guidelines. of the At

sentencing the district court made a factu- I. finding al that Blick’s actions in a resulted $655,000 loss of to Eli and added fourteen Blick was a and one-third owner CEO levels to Blick’s base offense level under (Eli), in- Enterprise Integration, Inc. guidelines. the With the fourteen-level en- systems firm. In consulting formation adjustments hancement and other taken early 2003 Blick was conned a man account, sentencing range into the was claiming Nigerian official who thirty thirty-seven months. Without could, Blick, help with some from embezzle enhancement, the fourteen-level the sen- Nigerian govern- million from the $20.5 tencing range would have been zero to six government ment connection with a con- Blick thirty-month months. received a promised tract. The man to share the objected sentence. He to the enhance- (1) booty with Blick if Blick would advance grounds ment on the that imposition necessary monies to facilitate the scheme greater a sentence than the maximum au- (2) and companies allow one of his to be thorized the facts admitted in the designated rightful recipient as “the of the agreement was a violation of his Sixth money.” J.A. 96. Blick wired over Blakely. Amendment Blick $2,000,000 artist, funding to the con stay also moved the court to execution of large part advances in with unauthorized judgment until the resolution of Book- withdrawals from bank account. Ell’s er, pending Supreme which was before the repaid money, Blick some of the but sentencing. Court at the time of his The missing October 2003 so much was district court denied Blick’s motions but Eli in danger making payroll. was of not him if Supreme told Court’s deci- Blick then informed his co-owners about him],” sion Booker “affect[ed withdrawals, his unauthorized and his co- promptly entertain a motion to re- owners contacted the authorities. On Jan- consider. J.A. 76. filed an uary on was indicted seven prior this court Supreme Court’s ultimately counts of wire fraud. Blick en- argues Booker decision. supple- He tered into a written plea agreement with mental brief he is entitled to a re- government pled guilty one resentencing mand for in light of Booker government agreed count. The to dismiss Hughes, States v. remaining plea agree- counts. The (4th Cir.2005). government ment included following appeal waiver: contends waiver bars knowingly “the defendant waives the appeal. Blick’s to appeal any the conviction and sentence provided within the maximum in the stat- II. (or ute of conviction the manner in which determined) any that sentence on United States v. Attar we held that a ground whatsoever, for exchange “fairly defendant cannot be said to have public policy 107 S.Ct. appeal his on behind right to sentence waived his following jury trial ground proceedings right applied that the Booker is the entry plea were conducted guilty policy “guard[ing] against centuries-old Amendment of his Sixth .spirit- tyranny violation oppression counsel, a defendant’s Booker, part governments. rulers” and of his appellate waive review (quoting Apprendi 125 S.Ct. v. New assumption on the conditioned implicitly 477, 466, 2348, Jersey, 530 120 S.Ct. U.S. following entry proceedings (2000)). public poli 147 L.Ed.2d This 435 with plea will be conducted accordance cy is harmed of an ap when enforcement 38 limitations.” F.3d constitutional waiver in an peal agreement results un- an appeal held that waiver We have also jury right, trial remedied violation of the a of a when “will not bar sentence impor [right] surpassing “constitutional o'f was based a constitu 476, at Apprendi, tance.” 530 U.S. 120 ” factor.... tionally impermissible United outweighs 2348. This harm the in S.Ct. (4th Brown, 399, F.3d v. 232 403 States agreement. enforcing terest Cir.2000); v. see also United States It is true that a defendant waive 1143, 1147 Broughton-Jones, part constitutional as of his rights decision Marin, Cir.1995) (same), v. context, however, forego a In that trial. (4th Cir.1992) (same). 493, 961 496 or “[r]elinquishment waiver derives ... based on a “constitu Bliek’s sentence was necessarily from the admissions made factor,” is, it tionally impermissible upon entry voluntary plea guilty.” of a of was facts found district based on Broce, 563, 488 U.S. United States v. 573- court in violation the Sixth Amendment. (1989) S.Ct. L.Ed.2d 927 102 Likewise, sentencing hearing Bliek’s added). Thus, (emphasis the waiver of not in accordance consti “conducted with rights plea proceeding trial in a does not judicial fact- limitations” because tutional create the of unremedied same risk consti- subjects a defendant a sen finding that when a by the tutional violations exists de- greater tence than that allowed un from a plea jury or verdict alone is fendant waives bargain Accordingly, place. yet constitutional. Attar has not taken proceeding that prevent prospec Brown a defendant from example, although For a defendant waives tively un waiving challenge an jury to a trial his Sixth Amendment pro or sentencing constitutional sentence by entering plea agreement, a into cedure. rights are not Sixth Amendment violated Similarly, plea in the if a proceeding. against prospective rule

Attar’s challenge not to va- defendant decides constitutional viola- lidity of a or a confession before search sentencing tions is consistent pre- it entering agreement, into is general rule that circumscribes the waiver either that sumed he has determined rights. “The relevant constitutional and a chal- rights were not violated principle promise [to is well established: that the lenge pointless sup- or is right] waive a constitutional unenforcea- significant- pression of evidence would in its ble if the interest enforcement In ly help his case on the merits. other outweighed by pub- in the circumstances words, guilty ensuing and the “[a] policy lic harmed enforcement of the conviction all of the factual agreement.” comprehend Newton Rumery, Town legal necessary to sustain a elements U.S. (1987); binding, judgment guilt....” n. final Id. at see also id. at 392 L.Ed.2d Attar, Although Nothing 109 S.Ct. 757. trial Ante at 172-73. howev- er, suggests precluding that the rule waiv- waived, a are defendant’s own admissions er of the an unconstitution- reliability of the conviction and ensure only al sentence is limited to unforeseen protect against dangers of unremedied Nevertheless, constitutional violations. constitutional violations. majority appears saying to be that a contrast, By appeal waivers are not subject defendant can himself to constitu- guilt. based on a defendant’s admission of long tional violations at so as waiver, they context of reasonably contemplated are plea agreement. approach, Under agrees defendant not to a sentenc- a defendant could be sentenced example, factual, statutory, ing court’s or constitu- (or without the assistance of counsel even rulings they tional before even been have pro representation) if he se consented to (presumably in exchange made for a con- plea agreement. only that the Not Thus, government). cession prospect disturbing, this it violates the agreement provides defendant’s no assur- public policy behind the Sixth Amendment subsequent ance that the court’s determi- right to counsel. nations will correct or that the sentence majority’s analysis ignores a funda- sentencing procedures or will be constitu- point: mental the rule Attar and Brown generally permit tional. We defendants to place rights serves to certain on limits right waive their to factual and government can demand that a defen- legal determinations at in the waive, regardless dant of the literal terms finality, interest of see United v. agreement. of the waiver The rule that an Cir.1990), Wiggins, 905 F.2d 53-54 appeal waiver is on a conditioned constitu- but Attar establishes that some limits are sentencing proceeding tional is based on required. ap- The waiver of to right principle that “a who defendant waives peal proceeding yet errors in a to has to does not subject himself presents occur a substantial risk of unrem- being entirely sentenced at the whim of edied constitutional violations that would Marin, the district’ court.” 961 F.2d at “impair[ appreciable to an ] extent 496. signs Even defendant who a blan- policies behind the involved.” Town ket waiver “retains the Newton, 480 U.S. at 107 S.Ct. 1187 appellate obtain review of his sentence on reason, wisely n. 2. For this Attar held Attar, grounds.” certain limited 38 F.3d appellate the waiver of review “is implicitly assumption conditioned on the I agree majority with the that Blick’s proceedings that the following entry of the decision to enter plea agreement into the plea will be conducted accordance with unknowing was not rendered or involun- constitutional limitations.” at tary voluntary because of Booker. “[A] plea guilty intelligently made in the majority concludes that Attar does light of applicable the then law does not not require us to consider Blick’s constitu- judicial become vulnerable because later only tional claim because that decision decisions indicate that [decision to en- prevents a defendant waiving from faulty ter into rested on a prem- the] constitutional errors that States, Brady ise.” v. U.S. “reasonably contemplated are not when 90 S.Ct. 25 L.Ed.2d 747 plea agreement executed” or ][was] (1970). may Under rule defendant mount, part are “not bargain defen- [the rely changes in the law to struck validity guilty dant] with the United States.” attack on the plea. every led other circuit principle This has Hughes McDONAL, Mable Annette Par has the issue conclude addressed ent and Next Friend of Jamielee waive his

that a defendant Hughes McDonal; Darryl A. McDon ante at 170-71 a Booker error. See al, Next Parent and Friend of Jamiel cases). circuit, however, (collecting In this Hughes McDonal, Plaintiffs-Appel ee Attar, abide which holds that we must lants, waive the prospectively defendant cannot constitutional violations waiver sentencing, even is know- when LABORATORIES, ABBOTT Thus, agree while I voluntary. al., Defendants, et render that Booker does not Blick’s deci- Laboratories, Inc.; Abbott American to enter into a invol- sion Corp., doing Home Products business untary, under was Attar Wyeth Laboratories; Wyeth-Ay as “implicitly assumption conditioned on erst; Wyeth-Ayerst Laboratories; [sentencing] proceedings following Wyeth Lederle; Wyeth Lederle Vac entry be conducted [his] [would] cines; Laboratories; Lederle Aventis limitations.” accordance constitutional Inc., Individually Pasteur and as suc Blick’s F.3d at 732. Because Connaught; cessor in Bax interest by judge-found enhanced facts Inc.; Lilly Co.; ter International Eli & scheme, then-mandatory International, Inc.; Emerck; GDL Amendment. sentence violated the Sixth Glaxosmithkline, Individually, and as in interest successor to Smithkline out that it made government points Corp.; Company Beecham Merck & counts, (dropping to Blick six concessions Inc.; Sigma Aldrich, Inc.; Spectrum example) exchange agree- for his Manufacturing Corp.; Chemical Ur rights. ment to waive his Accord- M.D.; quima; Ferguson, Mitzi Leslie argues that ingly, government it would M.D.; Jones, Lamar River Oaks Hos bargain its if Blick denied the benefit of pital, Defendants-Appellees. count. is resentenced on the one This is Still, point. valid Blick’s unconstitutional No. 02-60773. I cannot stand. therefore of Appeals, United States Court accord the govern-

vacate sentence and Fifth Circuit. option ment the on remand withdraw April If the agreement. govern- from the 6, 2005. Rehearing Denied June agreement, ment withdrew from the guilty plea and Blick’s both void. parties

would be would then over with indictment.

start the seven-count

Case Details

Case Name: United States v. George R. Blick

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 27, 2005

Citation: 408 F.3d 162

Docket Number: 04-4887

Court Abbreviation: 4th Cir.